A.E.C. v. J.T.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A.E.C.,

Plaintiff-Appellant,

v.

J.T.,

Defendant-Respondent.

______________________________________________

December 28, 2016

Argued November 29, 2016 Decided

Before Judges Messano and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-2367-15.

Carly Campoli and Christine Braswell argued the cause for appellant (Rutgers Domestic Violence Clinic, attorneys; Victoria L. Chase, of counsel; Jason Scott Kanterman

and Jesse Kyle Posey, on the brief).

Respondent J.T. has not filed a brief.

PER CURIAM

Plaintiff A.E.C. appeals from the Family Part's April 21, 2015 order that dismissed her complaint and vacated a temporary restraining order (TRO) previously issued against defendant J.T. pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the Act). We reverse.

Plaintiff resided with defendant, along with their two children, ages four and two, in defendant's mother's house. She obtained a TRO against defendant, asserting in her complaint that defendant had assaulted her and committed criminal mischief. Plaintiff alleged defendant "threw her around pulling her hair" and "put her in a choke hold until she had trouble breathing and almost passed out." She also alleged defendant "threw her items around the room and smashed her cell phone." In addition, plaintiff stated defendant committed various "simple assaults both reported and unreported over the past [two] years."

The parties appeared before the Family Part judge for a hearing; neither was represented by counsel. After placing plaintiff and defendant under oath, the judge began questioning plaintiff, who described what occurred after she returned home late at night following a birthday celebration with her sister. Among other things, defendant smashed plaintiff's cellphone against the wall and threw her "into the dressers and on the floor." Defendant placed plaintiff in a chokehold such that she "couldn't breathe." Plaintiff left the house the next day, went to the hospital and did not return to the home.

After listening to plaintiff's description of events, the judge asked, "So what do you need a restraining order for?" Plaintiff stated, "This is repetitive. This is the third reported matter." The judge's response was disturbing

Well, it's repetitive because you keep putting yourself back in the situation where you're with him. So if you stay away from him, do you have a fear that he's going to come after you? I mean I have no doubt. I believe you when you say there was some sort of an assault.

Referencing the second part of the two-fold analysis set forth in Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006), the judge asked rhetorically,

is there a need for a restraining order? . . . [I]t sounds to me like if the two of you aren't together, you don't have any allegations that he's going to stalk you or come after you or come to find you or that he's going to hurt you if you're not together.

Plaintiff explained that even when she and defendant had "broken up before," defendant would repeatedly call her, and defendant told his mother he would not stop "putting [his] hands on [plaintiff]" until he "kill[ed] her." The judge referenced an earlier-issued TRO, which plaintiff apparently dismissed pursuant to a consent order, and asked whether there were any problems when plaintiff and defendant had separated. Plaintiff testified defendant repeatedly called her and made threats.

Defendant described the night of the incident that gave rise to plaintiff's complaint. He acknowledged being upset when plaintiff failed to return his messages and phone calls while she was celebrating with her sister. Defendant admitted throwing plaintiff's clothing around the room. However, defendant claimed plaintiff threw his clothes outside and tried to break his IPad. He denied placing plaintiff in a chokehold, but admitted putting her in "a restraint" so she would stop "breaking [his] things."

The judge concluded both "parties acted in a very immature fashion" and had "an extremely dysfunctional relationship." She found defendant committed an assault, but plaintiff failed to prove "she need[ed] an actual restraining order." She explained,

As long as the parties don't physically go near one another, the issues they may have involve parenting time, like . . . plaintiff said before, when they were separated after they had this consent order they entered into, yes, there were problems with the parenting time, but she doesn't say that there were . . . any real problems between the two of them because they weren't together . . . . So clearly these folks can't be near one another.

The judge told defendant he needed to work out a parenting schedule, but told him "it really doesn't involve anything that has to do with the two of you anymore. . . . [Y]ou need to really just stay away from each other." Turning to plaintiff, the judge said, "I can't tell you what to do other than when you're back with him[,] it's not working for you, you fight." The judge decided not to issue a final restraining order (FRO), dismissed the complaint and vacated the TRO.

Before us, plaintiff argues the judge failed to consider the appropriate factors in determining whether an FRO was needed and instead relied upon the post-TRO separation of the parties. We agree.

In Silver, we explained the two-step process trial courts should employ in deciding whether to issue an FRO. "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred." Silver, supra, 387 N.J. Super. at 125. Here, the judge determined defendant had committed an assault. See N.J.S.A. 2C:25-19(a)(2).

"The second inquiry . . . is whether the court should enter a restraining order that provides protection for the victim." Silver, supra, 387 N.J. Super. at 126. To answer the question, "the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse." Id. at 127.1 In this case, the judge failed to adequately consider these factors.

In addition, N.J.S.A. 2C:25-28(a) provides that the "court shall not dismiss any complaint . . . because the victim has left the residence to avoid further incidents of domestic violence." Plaintiff testified she was living at an undisclosed location with her children because of continued fear for her safety and their safety. The judge impermissibly concluded that plaintiff's separation from defendant, something occasioned by defendant's assault, demonstrated she no longer needed the protections of the Act.

We vacate the order dismissing plaintiff's complaint, reinstate the TRO and remand the matter for a hearing to properly consider plaintiff's continued need for an FRO by applying the factors set forth in the second step of the Silver analysis. 387 N.J. Super. at 128. We direct that the remand hearing take place before a different judge.

Reversed and remanded. We do not retain jurisdiction.

1 Those factors include but are not limited to

The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse; [] The existence of immediate danger to person or property; [] The financial circumstances of the plaintiff and defendant; [] The best interests of the victim and any child; [] In determining custody and parenting time the protection of the victim's safety; and [] The existence of a verifiable order of protection from another jurisdiction.

[N.J.S.A. 2C:25-29(a)(1) to (a)(6).]